SOME OBSERVATIONS ON THE LAW OF CRIMINAL
CONTEMPT."
The judgment of Lord Hardwicke in Roach v . Garvanl is often
cited as a locus classicus in the law of contempt of court.
"Nothing is more incumbent upon courts of justice than to
preserve their proceedings from being misrepresented; nor is there
anything of more pernicious consequence than to prejudice the
minds of the publick against persons concerned as parties in
causes, before the cause is finally heard . . . There are three
different sorts of contempt. One kind of contempt is scandalizing
the court itself. There may be likewise a contempt of this Court,
in abusing parties who are concerned in causes here. There may
be also a contempt of this court, in prejudicing mankind against
persons, before the cause is heard."
There is a formidable body of common law authority in England,
Australia, and elsewhere in the Commonwealth, applying and expounding the doctrine of Roach v . Garvan. The exercise of this contempt power by English courts has been described by a recent American writer as "frightening to one who is reared in the climate of a
free-wheeling pres~,"~
and as a "Draconian control over press coverage
of trials to keep the 'stream of justice' pure."3 The American doctrine,
in the context of contempt by publication and comment, is very different. As the American law now stands, there is, seemingly, little
control by way of criminal contempt proceedings over the publication
of matter which in Lord Hardwicke's antique phrase, scandalizes the
courts or tends to prejudice mankind against persons before the cause
is heard. In this paper, some attempt will be made to explore and
compare some of the English, Australian and American rules and
doctrines.
I n the United States, the events which occurred in the immediate
aftermath of the assassination of President Kennedy drew attention to
what many American lawyers regarded as a very unsatisfactory state
of affairs. In December 1963, the American Bar Association issued a
statement in which it was said that what had taken place
*
A paper read at the 1965 Law Summer School held at the University of
Western Australia.
1 (1740) 2 Atk. 469, 26 E.R. 683.
2 GOLDFARB,
THECONTEMPT
POWER(New York 1963) 88.
3 Goldfarb, Ensuring Fair Trials. T h e Impropriety of Publicity, T h e New
Republic, 29th February 1964, at 12.
"struck at the heart of a fundamental rule of law with its guarantees of a fair trial for everyone, however heinous the crime involved. The widespread publicising of Oswald's alleged guilt,
involving statements by officials and public disclosures of the
details of 'evidence' would have made it extremely difficult to
empanel an unprejudiced jury and afford the accused a fair trial.
It conceivably could have prevented any lawful trial of Oswald
due to the difficulty of finding jurors who had not been prejudiced
by these public statements."
Similar concern was expressed by other^.^ The Warren Commission
Report gave a detailed account of these events5 and recommended
that "the representatives of the bar, law enforcement associations, and
the news media work together to establish ethical standards concerning the collection and presentation of information to the public so
that there will be no interference with pending criminal investigations,
court proceedings or the right of individuals to a fair trial."6
T o an English or Australian lawyer, such a recommendation
couched in voluntary and hortatory terms will surely seem very
strange. But it was framed in part, at least, in light of the difficulties
experienced in formulating a viable and constitutional law of contempt. It was framed, too, in the light of American doubts about the
proprietary of restriction of freedom of the press. As the author of the
most recent American text on contempt of court expresses it:
"The latitude of American courts in dealing with the press is a
cause both of the gauche, sensationalistic press-all too frequent
in this country-and for, on the other hand, some of the social
reforms, the great informational interchanges, and the general
enlightenment of the population in matters of public interest.
For this latter reason primarily, the use of constructive contempt
against the press by American courts has been sporadic and
u~succ~ss~~~."~
There are important and contending values, and the wise resolution of
conflicts may not always be as clear as some of the English and Australian judgments would suggest. And, it should be added, there is some
incoherence in English doctrine. The strict rules of contempt, once
proceedings are pending, operate alongside a freedom to report comSee e.g., statement by American Civil Liberties Union, New York Times,
6th December 1963, at 18; letter by Justice Geller, New York Times, 12th
December 1963, at 38.
5 Report of the Warren Commission on the Assassination of President Kennedy, Chapter V.
6 Ibid., (Bantam Books ed. 1964) at 47.
7 GOLDFARB,
THE COSTEMPTPOWER,89.
4
mittal proceedings in full detail. "One wonders", as GOLDPARB
observes, "about the caliber of some of the existing English tabloids.""
The account by Ludovic Kennedy of the trial of Stephen Ward leaves
one with the sense that the English contempt rules do not effectively
protect an accused person in a cause celebre from the most damning
prej~dice.~
More than sixty years ago, a writer in t h Law
~
Quarterly Review
described the jurisdiction to commit for criminal contempt as one
"which enables a judge to commit to prison a subject of the Queen,
without the verdict of a jury and without appeal; to fine him either
as an additional or substitutional punishment, without limit of amount,
for an offence which has never been defined by statutory enactment."
This, he concluded, "is a jurisdiction which no-one will deny requires
the closest scrutiny whenever it is exercised."1° It was not until 1960
that a right of appeal was allowed in England against a summary conviction for contempt,ll and even then, atypically, an applicant for
committal or attachment may appeal in cases where the application
is unsuccessful. I t is the summary character of this ill-confined jurisdiction to punish for contempt which gives rise to especial concern.
As a matter of authority, it is well established, and the High Court
of Australia, notwithstanding an argument which was described as
"interesting and informative"12 and, I would add, valiant, held in
James v. Robinson13 that whatever the soundness of the historical basis
of the summary jurisdiction to punish for contempt not committed
in face of the Court, it was now unassailable. That historical basis
rests on R v. Almon.14 The actual proceedings in Almon went awry,
and Mr. Justice Wilmot's judgment, which is the prime source of
authority on this matter, was discovered in his papers and published
posthumously. There have been elaborate historical demonstrations
of its error of which the best known was by Sir John
and there
the principal (though somewhat dated)
are many others.16 OSWALD,
s Ibid., at 88.
9
10
11
12
13
14
1.5
16
LUDOVIC
KENSEDI.,T H E TRIALOF STEPHENWARD(London, 1964).
Hughes, C o n t e m p t of Court and T h e Press, (1900) 16 L. Q. REV. 292.
Administration of Justice Act 1960, sec. 13.
James v. Robinsoti, [I9641 Argus L.R. 7, at 17, per TVindeyer J.
[IN41 Argus L.R. 7.
(1965) Wilmot's Notes 243.
COXTEMPT
OF COURT(Oxford 1927).
See e.g., 3 HOLDSWORTII,
HISTORY
OF ENGLISH
LATY(4th ed. 1938), at 393-4;
Goodhart, (1935) 18 HARV.L. REV. 885, at 899; Frankfurter and Landis,
(1924) 37 HARV.L. REV.1010. See also John Fairfax & Son Ltd. v. McRae,
(1955) 94 Coinmonwealth L.R. 351; Green v. U.S., (1958) 356 U.S. 165.
English text writer on contempt, says of Wilmot's conclusion that the
power to punish summarily for contempt existed from earliest times,
that "this appears in fact not to have been the case, and the judgment
in question will be found on examination to depend rather on a
somewhat turbid rhetoric than in ratiocination or the examination of
a~thorities."~'A recent American writer speaks of Wilmot's doctrine
as a venerable product of stare decisis and years of acceptance, though
somewhat limp from recent criticism,18 a view perhaps shared by the
High Court in James v. Robinson as to the first part, but categorically
rejected by it as to the second.
I n James u. Robinsonlo Windeyer J . observed that in the United
States the scope of the jurisdiction to deal summarily with contempt
has been the subject of differences of judicial opinion because of the
constitutional assurances of due process and freedom of speech and
of thc press. I t is true that the power to deal generally with contempt
is bound up with these constitutional provisions, but the power to deal
summarily with contempt has been considered more specifically in the
context of the American constitutional provision for jury trial for
crimes. I t appears to be the law that when a contempt is committed
in face of the court, the constitution does not deny power to punish
summarily.20In Sacher u.
there were differences in the Supreme
Court over the ambit of this power. I n that case a federal judge, at
the end of a long trial, summarily punished defence lawyers and a
layman acting as his own attorney for contempt by conduct obstructing
the trial. The majority in the Supreme Court held that this was permissible exercise of summary jurisdiction to punish for contempt in
face of the court. Black J. foreshadowing later and broader arguments
dissented, and said that there was no constitutional warrant for surnmary punishment in this case. The summary power must be narrowly
confined to permit the judge to exercise it only to preserve order in
his own court-room and to compel obedience to his orders. Here that
need was not shown since the trial was already over when the judge
purported to exercise the contempt power. Black J. characterized the
general power to commit by summary process for contempt as "an
illegitimate offspring of this historic coercive contempt power."22
17
18
19
20
21
22
CONTEMPT
(3rd ed. 1910) at 3.
GOLDFARB,
THE CONTEMPT
POWERat 16.
[I9641 Argus L.R. 7, at 18.
Ex parte Terry, (1888) 128 U.S. 289. See more recently Sacher v. U.S., (1951)
343 U.S. 1.
(1951) 343 U.S. 1.
Ibid., at 22.
In Green v . United Statesz3 the Supreme Court considered the
matter in a context which involved punishment for criminal contempt
not committed in the face of the Court. The contempt alleged was
disobedience to the order of a federal court by failure to appear for
sentence, and this was summarily punished by three years imprisonment. A majority in the Supreme Court sustained the conviction, and
said that "the statements of this Court in a long and unbroken line of
decision involving contempts ranging from misbehaviour in court to
disobedience to court orders establish beyond peradventure that
criminal contempts are not subject to jury trials as a matter of constitutional right.''24 Frankfurter J. confronted with his earlier professorial demonstration of the unsoundness of the doctrine of Almon's
case, nonetheless elected to follow it. Scholarship, he said, could not
wipe out a century and a half of legislative and judicial history of
. ~ ~ members of the Court, speaking
federal law based on A l r n ~ n Three
through Black J. dissented, and required trial by jury on such a charge
of criminal contempt.26
"The power of a judgr to inflict punishment for criminal contempt by mrans of a summary proceeding stands as an anomaly
in the law. Tn my judLgmentthe time has come for a fundamental
and searching reconsideration of the validity of this power which
has aptly been charactprized hy a State Supreme Court as
'?erhaps nearest akin to despotic power of any power existing
under our form of government.' Even though this extraordinary
authority first slipped into the law as a very limited and insignificant thing. it has relentlessly swollen, at the hands of not unwilling judges, until it has become a drastic and pervasive mode of
administering criminal justice, usurping our regular constitutional
methods of trying those charged with offences against society . . .
1 would reject those precedents which have held the federal
courts can punish an alleged violation outside the courtroom of
their decrees by means of a summary trial, at least as long as
they can punish by severe prison sentences or fines as they now
can and do."
The Supreme Court was even more sharply divided in United
'
defendant Governor of Mississippi was
States u. Ross B a ~ n e t t . ~The
charged with criminal contempt by wilful disobedience to the order
'23
24
25
20
27
(1958) 358 U.S. 165.
Ibid., at 183.
See James v. Robinson, [I9641 Argus L.R. 7, at 18, per Tirindeyer J.
(1958) 358 U.S. 165, at 193-194.
(1964) 32 U.S. Law Week 4304.
of a federal court, and argued, inte? alia, that he was entitled to a
jury trial on the charge. By a majority of five to four, the Court held
that he was not entitled to jury trial. As a matter of history and
authority, it was said that there was no constitutional requirement of
jury trial for criminal contempt proceedings, irrespective of the seriousness of the offence. The back of the majority decision seems, however,
to have been broken by a footnote to the opinion which stated that
some members of the Court (that is, of the majority) were of opinion
that, without regard to the seriousness of the offence, the summary
punishment would be constitutionally limited to the penalty provided
for petty offences. As Black J. observed in dissent, application of this
footnote would overrule Green v. United States, in part anyway,
because the sentence upheld in that case was three years. This qualification, indeed this very significant modification of earlier doctrine,
appears strangely placed in a footnote, though it was welcomed by
Black J. as a "halting step" in the direction of "ultimate judicial
obedience to the doubly proclaimed constitutional command that all
people charged with a crime, including those charged with criminal
contempt, must be given a trial with all the safeguards of the Bill of
Rights, including indictment by grand jury and trial by jury." Black J.,
with the support of Douglas J., adhered to the position he had stated
in Green v. United States. Goldberg J . in a separate concurrence,
supported by two other members of the Court, held that as a matter
of history, summary punishment for criminal contempt not in face
of the court, was permissible only in the case of contempts punishable
as petty offences by trivial penalties, but that all other trials for
criminal contempts required trial by jury. It "defied reality" to describe
the contempt charges in this case as trivial, for if they were sustained,
they certainly did not call for trivial penalties. I n accordance with
the fundamental policy of the Constitution, it was therefore required
that this charge of criminal contempt must be tried by jury.
From the authorities it appears that the developed doctrine in
the United States federal courts has restricted the power to punish
criminal contempts by summary process to cases involving ( i ) contempt directly in face of the Court, (ii) contempt which may be
purged by compliance with the order of the Court, cases "where the
defendant carries the keys to freedom in his willingness to comply with
the court's directiveuzs and (iii) contempt generally, where the punishment is as for a petty offence.
23
Green v. United States, (1958) 356 U.S. 168, at 19'7, per Black J. I t s h o ~ ~ l d
be noted that the Barnett case raised important practical issues. If Barnett
w7as constitutionall! entitled to a (Mississippi) jury trial, the chances of
English and Australian courts, as we have seen, have asserted an
unchallengeable historical base for the exercise of this summary power
to co mit for criminal contempt, however unsatisfactory that history
may h ve been. But the summary jurisdiction has also been supported
~ Divisional Court spoke
as a matter of principle. I n R. v. D a ~ i e s , 2the
of thc recourse to indictment or criminal information as "too dilatory
and t o inconvenient to afford any satisfactory remedy." The exercise
of the summary jurisdiction has been said to be "founded on the
elementary necessities of justice."30 Goodhart, in an often cited article,
after cmonstrating the imperfections of Wilmot's learning in Almon
wrote that "this is an interesting example of how an error in history
may prove of benefit in the development of the law, for if it were
~~
necessary to try before a jury every case of c o n s t r ~ c t i v econtempt,
s prejudicing the jury or thrcatening the parties, the present
of the press would lose much of its efficacy."32 All this, with
respect, is not easy to understand. I t is easy to see that where a contempt is committed in face of the court, the availability of a summary
to commit may be an appropriate and useful instrument of
1 and of court discipline. But where the contempt is not of this
character, what is the force of the argument that a jury trial is "slow7',
process of trial is "dilatory"? The important point is, surely,
a rule that such conduct will attract punishment, if proved.
should be any better use for summary proceedings here
than in thc case of any other crime has never been satisfactorily exIs it not better to say that the same general considerations of
lead to a jury trial upon a charge of crime also lead to
that a jury trial is appropriate on a charge of criminal
~ontempt?~W
course,
f
in a case like Barnett, a local jury, sympathetic
to Ba nett's conduct and outlook, is likely to refuse to convict. But this
applies to a
does hot apply only to cases of criminal contempt-it
murder
of
a
negro
by
a
white
accused-and
if this were
charge of
.b
4
T
sec iring a conviction for a manifest disregard of the federal court order
we e extremely remote. How can the Federal Government enforce its court
de rees relating to civil rights in the Sooth if violators of these court orders
are tried by southern juries which have demonstrated their aversion Lo
civil rights cases? Sec GOLDPARR,
THECONTEMPT
POWERat 333-334.
29 [I9 61 1 K.E. 32, at 41. See also Skipworth & Castro's Case, (1873) L.R. 9
(2. . 230, at 233.
:to Ja cs Fairfax 8c Sons Pty. Ltd. v. McRae, (1955) 93 Commonwealth L.R.
351, at 370.
:il T h a t is to say contempt n o t in face of the court.
:<z A'? uspapers and Conlemfit of Court in English Law, (1935) 48 HARV.L.
KFV. $85, at 899.
:J
Be le, Conterr~pt of Court: Civil and Criminc~l, (1908) 21 HAIIV.L. REV.
I G I , at 173.
d
!!
1
advanced as an argument in support of summary trial, it would have
to be carried into other areas where the requirement of jury trial is
unquestioned. A non lawyer venturing into this field described the
procedure by way of summary punishment for contempt as "wholly
alien from the genius of the common law"34 and, in my view, there
is much to be said for this. The summary procedure rests on concededly
bad history. I t is curiously lacking in principle. Is there not a case for
law reform here?
In.
Almon's case was one which fell into Lord Hardwicke's category
of scandalizing the court. Almon had attacked Lord Mansfield, not
physically but with his pen. Mr. Justice Wilmot was at pains to
explain why such acts constituted criminal contempt. I t was said that
attacks on judges
"excite in the minds of the people a general dissatisfaction with
all judicial determinations . . . and wherever men's allegiance to
the laws is so fundamentally shaken it is the most fatal and
dangerous obstruction of justice, and in my opinion calls out for
a more rapid and immediate redress than any other obstruction
whatsoever; not for the sake of judges as private individuals, but
because they are the channels by which the King's justice is conveyed to the people. T o be impartial and to be universally thought
so are both absolutely necessary for the giving justice that free
open and unimpaired current which it has for many ages found
all over this kingdom."35
The power to punish for contempt in such cases has been reaffirmed
on many occasions. An authoritative exposition of the doctrine in
Australia was given in King v . Dunbadin, ex parte Williarn~,3~
where
Rich J. said that the jurisdiction exists
"because the matter published aims a t lowering the authority of
the Court as a whole or that of its Judges and excites misgivings
as to the integrity, propriety and impartiality brought to the
exercise of the judicial office. The jurisdiction is not given for
the purpose of protecting the Judges personally from imputations
to which they may be exposed as individuals. I t is not given for
the purpose of restricting honest criticism based on rational
grounds of the manner in which the Court performs its functions.
34
35
36
Laski, Procedure for Constructive Contempt i n England, (1928) 41 HARV.
L. REV.1031, at 1041-1042.
Wilmot, Opinions, at 255-256, cited R. v. Davies, [I9061 1 K.B. at 41.
(1935) 53 Commonwealth L.R. 434, at 442-443.
11he law permits in respect of Courts, as of other institutions, the
lullest discussions of their doings so long as that discussion is
fairly conducted and is honetly directed at some definite public
cc. The jurisdiction exists in order that the authority of thr
1, w as administered in the Courts may be established and maint ined . . . The necessity of maintaining the authority of this
ourt against such attacks is perhaps even greater than in thc
c se of Courts under a unitary system of government. I t is the
ronstantly recurring task of this Court to decide upon the validity
o f the enactments of one or other of the seven governments of
Australia. Thus the Court occupies a position which makes any
tfndency to weaken its authority a matter of especial concern."
TrPo
d
'7
1
.
There are cases where affronts to the dignity of the judicial office
unqudstionably constitutes a contempt. We are reminded of the cases
of the seventeenth century felon who convicted before Richardson CJ.,
"jrct un brickbat a le justice que narrowly mist" and suffered the
penal y of losing the offending hand before being hanged in the
immediate presence of the court, and of the individual who threw an
egg a RIalins V-C. as he was leaving the bench. The judge first observec that the missile must have been intended for his brother,
Bacoq V-C., sitting in the next court, and then committed the thrower
to prison for contempt.37 I n such cases, the only serious question is
whetqer a summary trial is appropriate, a fortiori by the judge who is
hit or narrowly missed. But the case worthy of examination is that
discuslsed by Rich J. in R. v. Dunbadin; non-physical attacks on and
criticism of judges and courts. At the very end of the last century, in
~ c ~ $ v.
o dS t . A ~ b y n , 3the
~ Privy Council, in reversing contempt
convi tions for criticisn~sof judicial performances in the West Indies,
said hat whilr such a power to punish might be appropriate in a
proper case "in small colonies, consisting principally of coloured
popuhtions:3g
it was obsolete in England where the courts were
conte t to leave such matters to public opinion. Apart from the reference o the small and coloured colonies, the opinion has a very modern
and f rward-looking approach. Yet very shortly thereafter, in Reg. v.
GrayJO the obsoleteness of the jurisdiction in the United Kingdom
was firmly denied, and a Divisional Court punished a writer for a
criticism of Darling J. published in Birmingham while Darling J. was
sittin$ as assize judge there. A writer in the Law Quarterly Review for
1
1:
fi
[
J
1
37 0 s YALD, CONTEMPT
at
38
39
40
[I8 91 A.C. 549.
Ibi 1 dl 561.
1i9Biij2 Q.B. m.
41-42.
1900, in an article to which reference has already been made,41 expressed his misgivings at the result and questioned the propriety of
using the contempt power to punish what was merely scurrilous abuse,
which did not reflect on judicial capacity or on the integrity of the
judicial process.
Subsequent history shows that the doctrine of Reg. v Gray is very
much alive, and during this century there have been many instances
of the use of the contempt power for this purpose, although from
time to time there have been notable admonitions from the Bench
that "the path of criticism is a public way; the wrongheaded are
permitted to err therein . . . Justice is not a cloistered virtue; she must
be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men."42 I n R. v. Editor of New StatesMan43 a journalist was punished for writing in the aftermath of a
trial that people with the views of Dr. Marie Stopes could not apparently hope for a fair hearing from Mr. Justice Avory-and there
are so many Avorys. This was said by Lord Hewart C.J. to lower the
authority of the court and to interfere by its imputations of want of
impartiality with the due performance of judicial duties. I n R. u.
C o l ~ e y ,a~case
~ which Goodhart characterized as going to "extreme
limits,"45 mild and wry comments on Slesser L.J. were held to constitute criminal contempt.
The jurisdiction is obviously alive in Australia. I n R, u. A~rowsmith46 an attack was made on the impartiality of Lowe J. sitting as
a Royal Commissioner, with the power and status of a Justice of the
Supreme Court, to inquire into Communism. This publication was
held to constitute a criminal contempt. There are cases in which
Australian courts have declined to convict but have asserted the
existence of this jurisdi~tion,4~and a warning has been given on
occasion that the case lies very close to the border.48 Two decisions
Hughes, Contempt of Court and The Press, (1900) 16 L.Q. REV. 292. See
supra, at 3-4.
42 Ambard v. Attorney-General for Trinidad and Tobago, [I9361 A.C. 322, at
335, per Lord Atkin.
43 (1928) 44 Times L.R. 301.
44 T h e Times (London) 9th May 1931. Critically noted (1931) 47 L.Q. REV.315.
46 Op. cit. supra note 32, at 904.
46 [1950] Victorian L.R. '78. See also R . v. Collins, [I9541 Victorian L.R. 46;
Ex parte T h e Attorney-General; Re T r u t h and Sportsman Ltd., [I9611 S.R.
(N.S.W.) 454.
47 See e.g., Bell v. Stewart, (1920) 28 Commonwealth L.R. 419; R . v. Brett,
[I9501 Victorian L.R. 226.
48 In R. v. Brett, [I9501 Victorian L.R. 226, O'Bryan J. gave such a warning.
He did not record a conviction but he made no order for costs. This in itself
was a punishment.
41
of the High Court, now some thirty years old, examined the juris~ ~application was
diction. I n Icing v. Fletcher; Ex parte K i s ~ h ,an
made to the High Court to punish an editor and newspaper proprietor
for contempt of the High Court in publishing articles and letters
purporting to criticize a decision of the Court. That decision was
R. v. Wilson; Ex parte Kisch,5O in which the Court held that Scottish
Gaelic could not be regarded as a European language within the scope
and intention of section 3 ( a ) of the Immigration Restriction Act
1901. Some here today may remember those stirring and memorable
events. The decision, not very perfectly understood, aroused the ire
of Scottish nationalists, and language was used which was characterized
by the court as unwarranted, inaccurate, intemperate and offensive.
Evatt J. held that the matter published exceeded the limits of fair
criticism. He did not however fix a penalty beyond refusing to make
an order as to the costs of the respondents. I n King u . Dunbabin; Ex
parte Williarn~,~'the proprietor and editor of a newspaper were
punisled by substantial fines. There the article attacked the High
Court for decisions in this immigration case and in respect of sales
tax. The article was certainly tasteless, and Rich J. described its
thrust as being to "represent that the Court exercises its ingenuity in
order to defeat legislation to which great public importance attaches
and t l a t the Federal Government encounters in the Court a n obstacle
it might well seek to remove." This is combined with a suggestion that
one of its decisions pleased no one but the "Little Brothers of the
Soviet."52 All three members of the Court held that this constituted a
contempt; as Rich J. put it "Such imputations, if permitted, could
not but shake the confidence of litigants and the public in the decisions
of the Court and weaken the spirit of obedience to the law."53 The
majority agreed in imposing substantial penalties, while Starke J. was
of the opinion that the common good and authority of the Court
would be sufficiently vindicated "in this summary and arbitrary pro~ e s s , " ~if* the publication was declared a contempt and the respondents were ordered to pay the costs of the motion.
I n this case, in a passage already cited,55 Rich J. affirmed this
jurisciction in unequivocal terms, and said that the necessity for
maintaining the authority of the High Court, having regard to its
(1935) 52 Commonwealth L.R.248.
(1934) 52 Commonwealth L.R.234.
5 1 (1935) 53 Commonwealth L.R.434.
5 2 Ibid., at 444.
53 Ibid., at 445
54 Ibid., at 446.
55 See supra, at 9.
49
50
federal constitutional functions, was perhaps even greater than in
the case of courts under a unitary system of government. A reading of
this statement and of these decisions of the High Court, would certainly
surprise their brethren on the Supreme Court of the United States.
There can be little doubt, having regard to the course of decision,
that the exercise of contempt power in cases like Fletcher and Dunbabin would be u n c o n ~ t i t u t i o n a lin~ ~the United States. So far as the
federal courts are concerned, the power to punish for contempt is
conferred by statute, which was narrowly drawn and has been re, ~ ~ the power of the state courts is controlled
strictively i n t e r ~ r e t e d and
by the constitutional doctrine enunciated by the Supreme Court of the
United States.58A reading of American press comment and discussions
of Supreme Court decisions points up the difference in startling
fashion. I t would be said that it is precisely because the Court is
assigned high constitutional functions and responsibilities that it is
subject to public criticism which may be expressed vehemently and
intemperately. There are of course very real differences of ethos in
the two countries. While Americans are impressed with the performance and the style of British courts, they would not accept the doctrine
which finds expression in cases like Fletcher and Dunbabin, Reg. u .
Gray, and the other cases discussed. They would say, as I see it, that
there is no warrant for this rule of law, that in this context the values
of free expression outweight those of preserving the dignity and standing of the judicial process. They would also say, I think, that the
court on which the burden of vehement criticism rests most heavily,
the Supreme Court of the United States, is not overborne by such
criticism, tasteless and even shocking though it may be. They would
say that the limits of protection for the security of the judicial process
mush be much more narrowly drawn, and should be confined to
contempt in face of the
There is, I believe, some ground for doubting the case for the
maintenance of this head of contempt, save in the most extreme case.
The judgment of the Privy Council in McLeod u. St. Aubyn that this
jurisdiction was "obsolete" in the United Kingdom has been shown
See Bridges v. California: Times-Mirror v. Superior Court of California in
Los Angeles, (1941) 314 U.S. 252; Pennekamp v. Florida, (1946) 325 U.S.
331; Craig v. Harney, (1947) 331 U.S. 367; Woods v. Georgia, (1962) 370
U.S. 375. These cases deal with diverse aspects of the contempt power, but
the constitutional doctrine they state is plainly applicable to this case.
57 See GOLDFARB,
o p . cit. supra at 20-22, 90-93. See also Nye v. United States,
(1940) 313 U.S. 33.
5s See note 56 supra.
59 See e.g., Ex parte Terry, (1888) 128 U.S. 289.
56
to be wrong as a matter of law; the English and Australian cases
assert that the jurisdiction is " ~ n d o u b t e d , " ~and
~ during the course
of this century it has been exercised. It may, with respect, be asked
whether there was any warrant for its exercise in such a case as
Dunbabin, or indeed in any of the other cases discussed. Do the judges
and does the judicial process really need this protection? Would it
not have been the path of wisdom to have accepted the judgment on
Dunbabin, or indeed in any of the other cases discussed. Do the judges
the jurisdiction given by the Privy Council in McLeod v. St. Aubyn?
And, even if we concede the desirability of the jurisdiction, is this not
the case where there is the strongest argument against its exercise by
"summary and arbitrary'j61 process. I n King u. Fletchera2 Evatt J.
said that in such cases, as in all cases of contempt, the court has power
to act not only summarily but ex mero motu. And this is the area
in which the judge or court is most directly affronted by the alleged
contempt. There are safeguards, often but not invariably adopted,
in having the contempt issue tried by another judge or other judges.
But, again, if the justification for the jurisdiction is the tendency of
the act or statement to impair the confidence of the people in the
court's judgments because the matter published aims at lowering the
authority of the court and excites misgivings as to the integrity,
proprietary and impartiality brought to the exercise of the judicial
office, is not the reality of that tendency better judged by "the people,"
through the jury? Despite repeated statements in the judgments that
this jurisdiction is to be exercised cautiously and sparingly, it has not
too infrequently been exercised, and punishment inflicted, where the
pollution of the stream of justice is not very obvious.
IV.
Since the early 1940's, American courts, and particularly the
Supreme Court of the United States, have enunciated constitutional
doctrines limiting the power to punish for contempt. The cases have
involved constructive contempts, that is to say contempts not committed in face of the court, and have for the most part been concerned with Lord Hardwicke's head (somewhat extended) of
"prejudicing mankind against persons before the cause is heard."
I n Bridges u. California and Times-Mirror u. Superior Court of California in Los Angeles,B3 contempt convictions by California State
60
61
62
6s
King v. Dunbabin, (1935) 53 Commonwealth L.R. 434, at 446, per Starke J.
Ibid., at 446, per Starke J.
(1935) 52 Commonwealth L.R. 248, at 258.
(1941) 314 U.S. 252.
courts were reversed by bare majority decisions of the Supreme Court
of the United States as unconstitutional abridgements of freedom of
speech and of the press. Harry Bridges had sent a telegram to the
Secretary of Labour which he published in Los Angeles and San
Francisco, in which he attacked a decision of a state judge as outrageous and said that an attempt to enforce it would precipitate a
strike. At this time, a motion for a new trial was pending. I n the
Times-Mirrorcase, two labour unionists were awaiting sentence, and
a Los Angeles newspaper in an editorial declared that the judge would
make a serious mistake if he granted probation to the defendants who
were described as "gorillas" who should be sent to prison as an example
to the community. In these cases, the publications were held by the
trial courts to prejudice the fair conduct of legal proceedings before
judges sitting without juries. In reversing, the majority in the Supreme
Court of the United States required a showing of "clear and present
dangery' to support contempt convictions. This was a formula drawn
from other constitutional contexts, and it was said that the substantive
evil must be extremely serious and the degree of imminence of danger
extremely high before utterances or publications could be punished
as contempt. The majority judges observed that the California legislature had not addressed itself to the law of contempt, by enacting
legislation, and that the state courts had purported to exercise a
common law power. I t was also said that English authorities were
nr?t decisive, having regard to American constitutional history and
law, and the majority held further that the pressures brought to bear
on the judges were of little significance. Frankfurter J., speaking for
the dissenting judges, stressed the importance of safeguarding fair
and balanced trials. He did not find any special significance in a
"clear and present danger" test, which "is an expression of tendency
and not of accomplishment, and the literary difference between it and
'reasonable tendencyy is not of constitutional dimer~sion."~~
I n Pennekamp v . Florida,65 the Supreme Court unanimously reversed a state court conviction for contempt in respect of articles
attacking judicial integrity and performance. On the facts it was not
a strong case, and the court held that there was no impact on the
conduct of pending proceedings and that any possible effect on future
proceedings was too remote. Frankfurter J. in a separate concurrence
reminded the court of the importance of striking a proper balance
between the interests of a free press and the conduct of a fair trial.
64
65
Ibid., at 296.
(1946) 328 U.S. 331.
Tn Craig v. Harneya6 the Supreme Court, once again divided, reversed
a state court conviction for contempt. Successive newspaper articles
criticized a layman judge for his conduct of judicial proceedings,
which was described as arbitrary and as a travesty of justice. The
articles were published a t a time when a motion for a new trial was
pending. The majority in the Supreme Court characterized the articles
as strong and intemperate, but said that to sustain a contempt conviction it was necessary to show "an imminent, not merely a likely
threat to the administration of justice. The danger must not be remote
or even probable; it must immediately imperil."67 Frankfurter J. with
Vinson C.J. dissenting, pointed out that these newspapers dominated
the community, that they constituted a formidable pressure on this
individual judge, and concluded that there was no warrant for interfering with the judgment of the Texas court that the publications
constituted a clear and present danger to the due administration of
justice. Jackson J. in a separate dissent, pointed to the fact that the
,judge who was attacked was a layman with no anchor in professional
opinion, and that his short elective term made him peculiarly sensitive
to such newspaper pressures.
I n Maryland v. Baltimore Radio Show Inc.68 the Supreme Court
refused to review a decision of the Maryland Court of Appeals reversing a contempt conviction by a trial court. The alleged contempts
were radio broadcasts relating to a negro accused charged with the
murder of a young girl. The crime was atrocious and had attracted
wide attention. One of the broadcasts began with the words "Stand
by for a sensation." I t announced the arrest of the accused, and
recounted his confession and prior criminal record in detail. The same
matter was broadcast by other stations. The defendant in these circumstances waived jury trial under the Maryland rules, and was tried
and convicted for murder by a three judge court. A Maryland court
held the radio broadcaster guilty of contempt and based its power to
do so both on a specific rule of the Supreme Bench of Baltimore and
on its general power to issue citations for contempt to protect the
rights of prisoners to a fair trial. This conviction was reversed by a
majority decision of the Court of Appeals of Maryland which purported to apply the clear and present danger test as formulated by
the Supreme Court of the United States. I t was held that the broadcasts did not constitute a clear and present danger within the meaning
66
67
68
(1947) 331 U.S. 367.
Ibid., at 376.
(1950) 338 U.S. 912.
of that test. This was a case which, apart from the accused's election
to waive, would have involved jury trial, and it was argued therefore
that the Supreme Court test must be interpreted to accommodate the
special circumstances of a jury trial. As to this, the Maryland court
said "The distinction [between jury and non-jury trials] . . . is hardly
tenable. Judges are not so 'angelic' as to render them immune to
human influences calculated to affect the rest of mankind. Conversely
while juries represent a cross-section of the community, it cannot be
denied that in every community there are citizens who by training and
character are capable of the same firmness and impartiality as the
j ~ d i c i a r y . " ~The
~
Supreme Court of the United States, without
assigning reasons, declined to review, and Frankfurter J. took the comparatively unusual course of filing a separate opinion in which he
pointed out at some length that the denial of certiorari did not disclose
any view of the Court beyond a refusal to take the particular case.
I n an appendix to his opinion, he collected the English decisions on
contempt for publication prejudicial to the fair administration of
justice.
Again, in Woods v. Georgia,70 the Supreme Court by a majority
reversed a contempt conviction by a Georgia court. The state court
had convicted a sheriff who had made statements at a press conference
called by him which were held by the court to constitute a clear and
present danger to the deliberations of a grand jury sitting at the time
and considering the matters on which the sheriff had spoken. There
were complex political issues in the case and in the grand jury proceedings. Warren C.J. for the majority in the Supreme Court found
that the clear and present danger test was not satisfied. This was not
a trial of an individual but a general grand jury investigation into a
matter of concern to the general community, and the Court should
not at this time consider the "variant factors that would be present
in a case involving a petit jury."71 Harlan J. dissented sharply; in his
view the state conviction met federal constitutional standards. The
sheriff was a law enforcement officer, and this gave an official and
authoritative character to his statements, while the grand jury was
engaged on a specific investigation which had been the object of the
sheriff's statement and attack. "What may not seriously endanger the
independent deliberations of a judge may well jeopardise those of a
grand or petit
69
70
71
72
Baltimore Radio Show Inc. v. State, 67 A.2d. 497, at 508-509.
(1962) 370 U.S. 3'75.
Ibid., at 389.
Ibid., at 401-402.
No case has yet arisen in which the Supreme Court has directly
considered the issue of contempt by prejudicial publication in the
context of petty jury proceedings. Warren C.J. left this case open in
Woods u. Georgia, although the court in Craig v. H ~ r n e said,
y ~ ~somewhat surprisingly, that jurors are "men of fortitude, able to thrive in
a hardy climate." One recalls the admonition of Lord Ellenborough
more than a hundred-and-fifty years ago in R. u. Fisher7" that "if
anything is more important than another in the administration of
justice, it is that jurymen should come to trial of those persons on
whose guilt or innocence they are to decide, with minds pure and
unprejudicad. Is it possible that they should do so after having read
for weeks gnd months before ex parte statements of the evidence
against the accused which the latter had no opportunity to disprove
or to contkovert?" I t may be that there is not too significant a
distinction for this purpose between the situation of a juryman and
a lay judge with a short elective term, and in the latter case the
Supreme Court of the United States in Craig v. Harney reversed
a contempt conviction.
The ccburse of decision in the Supreme Court over the course of
the last twqnty years has occasioned extensive d i s c u ~ s i o n I. ~
t has
~ been
said that the cases show the contempt power to be a "negligible device
for protecting a defendant's right to a fair
I t is not the case,
however, that the cases starting with Bridges v. California opened the
floodgates. Before that time criminal trials were not infrequently conducted in h blaze of prejudicial publicity. The Hauptmann case in
the mid-1930's-Lindbergh baby kidnapping case-was
a startling
example. It was said of that case that it "exhibited perhaps the most
spectacular and depressing example of improper publicity and professional disconduct ever presented to the people of the United States
in a crimipal
The events preceding, during and after the
trial were 'chronicled by radio and news media without mercy; interviews werd given daily throughout the proceedings by attorneys for
73
74
75
70
77
(1947) 331 U.S. at 376.
(1811) 11 Rev. R. 779.
See GOLDFARB,
op. cit. supra, passim and esp. Chapter 2: Donnelly and Goldfarb, Codtempt by Publication i n the United States, (1961) 24 MOD.L. REV.
239; Goldfarb, Public Information, Criminal Trials and T h e Cause Celebre,
(1961) 316 N.Y.U.L. REV. 810; Will, Free Press Versus Fair Trial, (1963) 12
De Paul, L. REV. 197; T h e Case against Trial by Newspaper: Analysis and
Proposal) (1962) 57 Nw. U.L. REV. 217; Mullaney, A Re-examination o f
Bridges
California, (1959) 23 Albany L. REV.61.
Donnelly and Goldfarb, Contempt by Publication i n the United States, (1961)
24 MOD.jL. REV.at 245.
66 American Bar Association Reports 851, at 861.
both sides. The decisions of the Supreme Court since Bridges have
however made it unlikely that a viable contempt weapon can or will
be fashioned to control the publication of matter calculated to prejudice a fair trial. The Warren Commission recommended co-operation and voluntary agreement to establish standards for the collection
and presentation of information to the public so that there would be
no interference with pending criminal investigations, court proceedings, or the right to a fair trial. What hope there is of effective and
comprehensive voluntary agreement is very uncertain: the late H. L.
Mencken in characteristic style put it that "journalistic codes of ethics
are all moonshine." In the meantime, the problem remains a formidable
one, as evidenced by the concern of the Warren Commission, the
American Bar Association and by a recent spate of writing in the
aftermath of the Kennedy and Oswald assassinations. Only a few
years ago, not in the context of a prosecution for contempt, but in the
case of a successful application to the Supreme Court for reversal of
a conviction for murder on the ground that undue prejudicial publicity surrounding the events and trial had foreclosed the possibility of
a fair trial and thereby denied the accused a trial satisfying the
requirements of due process of law, Mr. Justice Frankfurter wrote:
"Not a term passes without this Court being importuned to
review convictions had in States throughout the country in which
substantial claims are made that a jury trial has been distorted
because of inflammatory newspaper accounts-too often, as in
this case, with the prosecutor's collaboration-exerting pressures
upon potential jurors before trial and even during the course of
trial, thereby making it difficult, if not impossible, to secure a
jury capable of taking in, free of prepossessions, evidence submitted in open court. Indeed such extraneous influences, in
violation of the decencies guaranteed by our Constitution, are
sometimes so powerful that an accused is forced to forego trial
by jury . . . For one reason or another this Court does not undertake to review all such envenomed state prosecutions. But again
and again, such disregard of fundamental fairness is so flagrant
that the Court is compelled, as it was only a week ago, to reverse
a conviction in which prejudicial newspaper intrusion has
poisoned the outcome . . . This Court has not yet decided that
the fair administration of criminal justice must be subordinated
to another safeguard of our constitutional system-freedom of
the press, properly conceived. The Court has not yet decided
that, while convictions must be reversed and miscarriages of
justice result because the minds of jurors or potential jurors were
poisoned, the poisoner is constitutionally protected in plying his
trade."7s
Frankfurter J., as we have seen, has consistently argued, often in
dissent, that the Court is not required as a matter of constitutional
doctrine to invalidate contempt convictions unless there is a showing
of clear and present danger as spelled out in the cases discussed.
There is now, however, a substantial body of authority in the
Supreme Court reversing on due process grounds, convictions of
accused persons which have been obtained in a trial and pre-trial
d ~such
~
process perverted by prejudicial publicity. Iruin u. D o ~ was
a case; there for months before the trial a barrage of newspaper
publicity was directed against the accused; radio and television rehearsed his personal history, his record of juvenile crimes and other
convictions; he was described as a "confessed slayer," a parole violator
and fraudulent cheque artist. A similar rase was Shepherd u. florid^.'^
Recently, in Rideau u. Loui~iana,~'the Supreme Court by a majority
decision reversed a murder conviction where a local television station
had thrice shown a film of an interrogation of Rideau by the sheriff
in which the accused had confcssed his guilt. I t was said that due
process of law in this case required a trial by jury drawn from a
community of people who had not seen or heard Rideau's televised
interview.
This sampling of due process cases reveals an interesting aspect
of American law. Some judges, Black J., for example, have regularly
joined with majorities in reversing contempt convictions for prejudicial publicity, while vigorously asserting that convictions of accused
persons should br reversed where the trial was perverted by prejudicial
publicity. I n Beck u. Washingtons2 a majority in the Supreme Court
refused to reverse the conviction of Beck, who complained of prejudice.
Black J. dissented, asserting that "a fair trial under fair procedure is
a basic element in our government. Zealous partisans filled with bias
and prejudice have no place among those whom government selects
to play important parts in trials designed to lead to fair determination
of guilt or innocence." Beck was a case in which, as noted, the majority
refused to reverse the conviction for want of due process, and there
will always be a judgment as to which side of a line a case falls. But
78
79
80
81
82
Irvin v. Dowd, (1961) 366 U.S. 717, at 729-730.
Ibid.
(1951) 341 U.S. 50.
(1963) 31 Law Week 4548.
(1962) 369 U.S. 541, at 569-570.
the cases in which convictions have been reversed on due process
grounds, because of prejudicial publicity, expose a curious situation.
Reversals of convictions do not operate as a sanction on, or a control
of, the activities of the media of publicity. Reversals of convictions
are "all in the nature of after thoughts or after-effectsTS3 and may
well produce the consequence that a guilty man will go free because
the courts deny to themselves power to control publicity which tends
to prejudice the conduct of proceedings, the outcome of which they
will subsequently nullify, because, and only because of that prejudicial
publicity. As Judge Will puts it, "it can be either the public or the
accused who suffers as the result of the publicity, to say nothing of the
ill effects on the fair and efficient administration of justice."s4
The English rule which is also the Australian rule on criminal
contempt by prejudicial publicity, has been stated on many occasions.
The basis upon which the rule rests was stated sixty years ago by
Wills J. in R. v . P ~ r k e . ~ "
"The reason why the publication of articles like those with which
we have to deal is treated as a contempt of court is because their
tendency and sometimes their object is to deprive the court of
the power of doing that which is the end for which it existsnamely to administer justice duly, impartially and with reference
solely to the facts judicially brought before it. Their tendency is
to reduce the court which has to try the case to impotence, so
far as the effectual elimination of prejudice and prepossession is
concerned."
I n each case, the court has applied the test whether the matter complained of is calculated to interfere with the course of justice,s6 and
the critical question is the tendency of the publication to interefere
with the course of justice, and not the intention of the p u b l i ~ h e r . ~ ~
The judges have said that this summary power to punish should be
used only in a clear case,88and have acknowledged the importance of
reconciling "the right of free speech and the public advantage that a
knave shall be exposed and the right of a suitor to have his case fairly
Will, Free Press Versus Fair Trial, (1963) 12 De Paul L. REV. 197. at 209.
Ibid., at 205.
85 [1903] 2 K.B. 432.
86 Reg. v. Odham's Press Ltd., [1957] 1 Q.B. 73, at 80.
87 Davis v. Baillie, [I9461 Victorian L.R. 486.
8s See e.g., Reg. v. Payne, [1896] 1 Q.B. 577; R. v. Davies, [I9451 1 K.B. 435;
Reg. v. Duffy, [I9601 2 Q.B. 188.
83
84
tried,"s9 and of striking the right balance.90 One factor which may be
material is whether a jury or a judge is determining the issue. I n
Reg. v. DuffyQ1after conviction and before appeal, a newspaper published statements about a man which, it was alleged, made him appear
a man addicted to violence. I t was said by Lord Parker C.J. that such
matter would not prejudicially affect the mind of the judges who heard
the case on appeal, and that it was not appropriate to issue a writ of
attachment. There are, however, modern cases where a publication
after conviction was held to be punishable as contempt because of
prejudice to a possible appeal.02
Where the court finds the case clear, it will not hesitate to act
summarily and severely. One of the most celebrated cases of recent
years, which bears striking comparison with the facts of some of the
American cases already discussed, was R. v . BolamQ3in which a newspaper company was heavily fined and its editor imprisoned for contempt. The paper published statements relating to one Haigh who
had been arrested for murder. It was said that he was a human vampire, and supporting descriptions were furnished. I t was also said that
he had committed other murders, and the names of the victims were
supplied. Lord Goddard C.J. said :
"In the long history of the present class of case there had never,
in the opinion of the court, been one of such gravity as this, or
one of such a scandalous and wicked character. It was of the
utmost importance that the court should vindicate the common
principles of justice, and, in the public interest, see that condign
punishment was meted out to persons guilty of such conduct."
The rule which emphasises tendency rather than intention has
produced some draconian decisions. I n Reg v . Odhams
a
newspaper company was punished for contempt in publishing an
article which stated that a named person was engaged in the business
of prostitution and brothel keeping in London, and urged his prosecution and arrest. Unknown to the defendant, this person was in fact
under arrest and was awaiting trial at the time of publication. I t was
held not to be a defence that the defendant did not know of the
89
90
91
92
93
94
R. v. Blumenfeld, (1912) 28 Times L.R. 308, at 311; R. v. Arrowsmith,
[I9501 Victorian L.R. 78.
Davis v. Baillie, [I9461 Victorian L.R. 486, at 494-495.
[I9601 2 Q.B. 188. See also Lord Parker C.J., note 10, infra.
Ex parte T h e Attorney-General: Re T r u t h and Sportsman Ltd., [I9611 S.R.
(N.S.W.) 454; and see R. v. Davies; Ex parte Delbert-Evans, [I9451 1 K.B.
435.
(1949) 93 Sol. Jo. 220.
[I9571 1 Q.B. 73.
proceedings; since the publication was calculated to interfere with the
case of a person under arrest and awaiting trial, it was punishable as
contempt. Section 11 ( 1 ) of the English Administration of Justice Act
now provides that a person shall not be guilty of contempt on the
ground that he has published any matter calculated to interfere with
the course of justice in connexion with any proceeding pending or
imminent at the time of publication if at that time (having taken all
reasonable care) he did not know and had no reason to suspect that
the proceedings were pending or that such proceedings were imminent.
Provided that the publisher has exercised due care, he will now have
a defence in such a case as Reg v. Odhams Press.
I n Reg a. Griffithc," the English distributors of the American
weekly, Newsweek, were held in contempt in respect of an issue of the
paper circulated in England which commented on the John Bodkin
Adams case while it was still proceeding. The distributors argued that
they had no knowledge of the contents of the magazine, and that they
were in the position of innocent disseminators. This was held to afford
no defence. Section 11 ( 2 ) of the Administration of Justice Act now
provides that a person shall not be guilty of contempt on the ground
that he has distributed a publication containing such matter as is
mentioned in subsection ( 1 ) if at the time of distribution (having
taken all reasonable care) he did not know that it contained any
such matter and had no reason to suspect that it was likely to do so.
The burden of proof of any fact tending to establish a defence under
thr section-that is undw section 11 ( 1 ) and ( 2 ) -lies on the person
raising the defence." This is not an Australian statute, and it is a
question whrther the severe doctrines of Reg zj. Odhams Press and
Reg v. G~iffithsremain law in Australia. If they do, there is a case
for statutory change.
Western Australia has reccntly made a contribution to the jurisprudence of contempt by directing attention to the question of the
point of time at which the power to punish for contempt arises. I t has
long been clear law that publication at a time when proceedings are
neither pending nor imminent will not constitute contempt. I n Porter
U. The King; Ex parte Yeeg7 the High Court reversed a contempt
conviction by the Supreme Court of the Northern Territory. The
contempt was alleged to lie in the publication of matter in a newspaper, and the editor before publishing had ascertained from a court
official that no legal proceedings relating to the matter had been
95
90
97
[1957] 2 Q.B. 192.
Sec. 11 (3) .
(1926) 37 Commonwealth L.R. 432, at 444. See also per Higgins J. at 447-448.
commenced. Isaacs J. said that if proceedings had been commenced,
there would have been a very serious interference with the due course
of justice which, on settled principles, would have been punishable as
a contempt.
"But where as here, there is no attack on a Court or Judge and
no proceedings have even been begun, how does the Court-any
Court--enter into the circumstances as a factor. I conceive the
principle of individual liberty of speech and writing, limited only
by the ordinary law, is in force in such a case, and that it would
be unprecedented and unwarranted stretch of curial authority,
and an undue limitation of the right of free speech to fine or
imprison for a mere conjectural impediment to a non-existent
proceeding. The power would be too arbitrary."
With such a principle, stated so very well, there can surely be no
disagreement.
T o stifle the press or discussion because of a possibility, because
of a merely conjectural interference with the due administration of
justice would often do great public mischief. But the question is one
of limits, and there remains a question as to the precise point at
which the power to punish for contempt arises. I t is now settled that
the power can and will attach at the point of time at which a person
has been arrested, even though charges have not yet been laid, and
a trial has not yet begun.9s Recently in Scotland, a newspaper company
was heavily fined for contempt in publishing an article at a time when
a man was merely detained by police in England in connexion with
inquiries into two murders which had been committed in Scotland.
He was not charged until a date subsequent to the publication. The
court said that the prisoner was under police arrest, and declined to
accept the time of committal as the first point at which the power to
punish for contempt arose. "The test must necessarily in both cases be
the same-will the steps that have been taken by the newspaper be
such as to prejudice the impartiality of the ultimate trial if a trial
takes place?"g9 As Wills J. said, long ago, in R. v . Parke1 "it is very
possible to poison the fountain of justice before it begins to flow."
What then of the case where an arrest is imminent but not yet
effected, though the police are in hot pursuit? May prejudicial publicity at that point be treated as contempt? This was the issue in James
9s See R. v. Parke, [1903] 2 K.B. 432; R. v. Clarke; Ex parte Crippen, (1910)
99
1
103 L.T.636; Packer v. Peacock, (1912) 13 Commonwealth L.R.577; James
v. Robinson, [I9641 Argus L.R. 7.
Stirling v. Associated Newspapers, [I9601 Sc.L.T. 5, at 7.
[1903] 2 K.B.432, at 438.
v. R ~ b i n s o n .Before
~
that case, the point had been raised and left
open by Lord Hewart C.J. in R. v. Daily Mirror; Ex parte Smith,3
and by the High Court of Australia in two more recent cases4 I n
Reg. v. Beaverbrook Newspapers Ltd.5 a Northern Ireland Court held
that the power to punish for contempt might attach before arrest,
and where arrest was imminent. There the defendant newspaper company was held in contempt for publishing photographs and other
matter relating to a man who was arrested and charged with murder
very shortly thereafter. At the time of publication the man was under
constant police surveillance, and statements to the effect that he was
regarded as a principal suspect were included in the newspaper reports. I t was argued on behalf of the defendants that thcre could be
no contempt, because no arrest had been made, and no warrant issued
at the date of publication. The court rejected the argument and, in
convicting, relied specifically on the terms of section 11 of the Administration of Justice Act 1960. The terms of that section have
; ~provides that a person shall in certain circumalready been ~ t a t e d it
stances not be guilty of contempt on the ground that he has published
any matter calculated to interfere with the course of justice in connection with any proceedings, pending or imminent, at the date of
publication.
O n its face, the section was remedial; it was framed as a limitation of liability and as a defence in the cases to which it applied.
Counsel argued that this was the limit of its operation, that if the
effect of the introduction of the word "imminent" in section 11 was
that a publication could be an offence in circumstances where proceedings had not yet begun, that it was a result which could not have
been intended. The "authorities show that the common law is not to
be altered by a mistaken view in an amending act . . . The common
~ court, however, rejected
law cannot be amended by i n f e r e n ~ e . "The
this argument and relied on the section to assert a substantive liability
to contempt proceedings in cases where proceedings, alleged to bc
affected by prejudicial publicity, were imminent. The possibility of
this result was foreseen by Windeyer J. in James v. Robinsons though
2
3
4
5
6
7
[I9641 Argus L.R. 7.
[I9271 1 K.B. 845, at 851. And see 8 HALSBURY,
LAWSOF ENGLAND
(3rd ed.)
at 9.
Consolidated Press Ltd. v. McRae, (1955) 93 Commonwealth L.R. 325, at
344-345; John Fairfax 8: Sons Pty. Ltd. v. McRae, (1955) 93 Commonwealth
L.R. 351, at 358-359.
[I9621 N.I. 15.
See supm, at 25.
[I9621 N.I. 15, at 18.
[I9641 Argus L.R. 7, at 21.
without knowledge of R e g u. Braverbrook Newspapers L t d . Windcycr
J. rrferrcd to section 11 of the Administration of Justice Act in the
context of the word "imminent", and said "The Act may allow court5
in England to take a step that I think we cannot take here. I t may,
by an indirect approach, have thus altered the law there."
So far as the decision of the court in R e g v. Beauerbrook Newsp a p ~ r sLtd. rests upon section 11 of the Administration of Justice Act,
its force is doubtful. As Goodhart observes, it is difficult to belicvr
that any draftsman would introduce a positive amendment by the use
of negative terms, and the most that can be said of the significance of
the 1960 Act in respect of imminent proceedings is that it furnishes
strong evidence that Parliament in using the word "imminent" must
have assumed that it was describing the then existing law, because
othenvise there could be no rational explanation for its inclusion in
the Act."
I t is not altogether clear from the judgment of the North Ireland
court whether the decision was reached exclusively by reference to the
terms of section 11. And in an address to American judges, Lord
Parker C.J. referred with approval to R e g u. Beauerbrook Newspapers
Ltd.lo But as a statement of the common law it was rejected by a
unanimous High Court in James u. Robinton.'' There, as will be well
recalled here, a Perth newspaper published two articles in which it
was statrd that two people had been murdered by a gunman, and that
Robinson, whose photograph was published, was being hunted by the
police. Two days later he was arrested. The decision of the Supreme
Court of Western Australia holding the newspaper company and its
editor guilty of contempt was reversed by the High Court. R e g v.
Beauerbrook Newspapers L,td. was not brought to the attention of the
Court, which after a detailed examination of other authority, concluded that while matter published antecedently to arrest or other
initiation of legal proceedings might constitute a libel, it could not be
contempt.
"If a publication is to constitute contempt at all it must be a
contempt at a time it is made, and the person aggrieved must be
aggrieved in his capacity as a party to proceedings; therefore he
must be a party at that time. I t would be an astonishing state of
affairs if a person responsible for a publication were to be held
9
10
11
C o n t e m p t of C O Z L Tw~h e n Proceedings I m m i n e n t , (1964) 80 L.Q. REV. 166,
at 168.
Printed in Thirty-Ninth Report of Judicial Council of Massachusetts, 1963.
Public Doc. No. 144. Also referred to by Goodhart, o p .cit. supra at 166.
[I9641 Argus L.R. 7.
guilty or not guilty of contempt according as proceedings should
or should not be commenced thereafter . . . if the imminence of
proceedings were to be regarded as sufficient foundation for
application for attachment for contempt in matters of this
character-which
would, of course, introduce many difficulties
and much uncertainty-then there was no reason why the courts
should have taken the trouble, as they have done in the many
cases mentioned, to examine the significance of the laying of an
information or the making of a charge and subsequent arrest."12
Windeyer J. in a separate concurring judgment stressed the character
of contempt as being historically, and by its name and nature, "concerned with the position of courts, with proceedings in court and with
the protection of parties to proceedings in court."13 If this produced
results which were not satisfactory, this was a matter for the legislature,
and not for the courts.
So far as Australia is concerned, this states the law, and in view
of the close examination of the authorities by the Court it is not likely
to change its mind because of the decision in the Beaverbrook case,
which, whatever its soundness in principle, is not a very satisfactorily
reasoned decision. But it is noteworthy that the Beaverbrook decision
has, in the result anyway, commanded the extra judicial approval of
the Lord Chief Justice of England. And Goodhart has added a comment on James v. Robinson which, I think, is persuasive.14 H e argues
that there may be sound arguments in principle for extending contempt proceedings to such cases as Robinson, where the hue and cry
had been raised and proceedings in a very obvious sense were imminent
against a particular person, and where the effect on the conduct of a
trial of the publication of prejudicial material in such a case is as
great as if proceedings had actually been commenced by an arrest.
Of course, the High Court argued the matter on the authorities, and
not as a matter of lex ferenda, though it was pointed out, as a matter
of principle, that "difficulties and much uncertainty" would arise if
publication was punishable as contempt, in the case of "imminent"
proceedings. I t may be argued, with respect, that there is a question
as to the thrust of the authorities. In giving practical application to
the doctrine that it is possible very effectually to poison the fountain
of justice before it begins to flow, the courts have reached further and
further back, to the point of arrest or detention. They have declined
to go back to a point, as in Porter v. T h e King, where proceedings
12
13
14
Ibid., at 13-14.
Ibid., at 20.
(1964) 80 L.Q. REV.166.
were not in any sense imminent. The present formulation of doctrine
does not, it is submitted, categorically foreclose the application of
contempt doctrines to cases where proceedings are plainly imrninent
against a particular person. If the words of particular judgments arc
cited against the validity of this proposition, it is submitted with
respect that they can appropriately be read in the context of the facts
of the particular case with which the Court was concerned. Thc
courts were reaching further and further back to bring the facts of
the particular case within the ambit of the contempt power. This does
not necessarily foreclose one further extension, consistent with the
principles of which the cases are particular applications, to cover
situations where the hue and cry is already on. The argument then is
that it does not do violence to authority, and certainly no violence to
principle to extend contempt doctrines to "imminent" proceedings.
As for the argument of "difficulties and much uncertainty" in so
extending contempt, it may be said generally that they are undoubted.
But the common law is used to the application of general categories
and formulae to particular cases; and in the context of such a case
as Robinson there would be little difficulty. I n a doubtful case, and
having regard particularly to the present summary character of the
jurisdiction, the proper course would be to lean against invoking the
contempt power. Moreover, as Goodhart points
in certain cases
where the police are in hot pursuit, the press and other media may
by publication of material (including photographs) help in the apprehension of a dangerous man. I t would obviously be improper to hold
such conduct to be contempt, but it would be quite another thing to
give the same protection to publication of details of his past criminal
record and other prejudicial material of this character.
I n dealing with the authorities in James v. Robinson, Windeyer J .
referred to Attorney-General v. Butterworth.16 There members of a
union were held guilty of contempt of court in taking unitive action
against a n officer of the union who had given evidence in court proceedings which had displeased the members. As Pearson L.J. said:
"It was contended that the court's inherent jurisdiction to deal
with contempt of court is limited to two classes of cases, namely,
those in which there is a scandalizing of the court, and those in
which there is prejudice to pending proceedings, and that the
jurisdiction does not extend to a case in which after the conclusion of the proceedings some person is victimized for what he
15
16
Ibid., at 170.
[I9631 1 Q.B. 696, at 728. Cf., Chapman v. Honig, [I9631 3 Weekly L.R. 19;
Note (1963) 79 L.Q. REV.468.
did as witness or juror in those proceedings. I n my judgment,
however, such victimization, because it tends to deter persons
from giving evidence as witnesses in future proceedings, and
giving that evidence frankly and fully and without fear of consequences, is an interference with the due administration of
justice as a continuing process, and does'constitute contempt of
court, and can be dealt with summarily under the inherent jurisdiction."
I n James v. Robinson, Attorney-General v. Butterworth was considered by the Court and was put aside, as not relevant to the issue
before the High Court. As Windeyer J. said, Butterworth dealt with a
contempt different in character from that before the Court; it was a
contempt because the conduct affected the administration of justice
generally, and not because proceedings in a particular case were
affected.17 As to this, Goodhart observes that "the administration of
justice generally is made up of proceedings in an unlimited number of
particular cases,"18 and if we go behind the words of a formula to its
raison d'etre, the reason why pressure on witnesses in past cases is
punishable as contempt is that it deters witnesses from giving evidence
in subsequent and particular cases, and therefore effectually poisons
the fountain of justice before it begins to flow in each particular case.
I n other words the basic policies of punishing as contempt acts which
affect the course of justice generally and those which affect an
identified particular proceedings are the same. Narrow and, as I
believe, unprincipled compartmentation is to be avoided. If this analysis be correct it is submitted that the principle stated in Butterworth
was relevant to the issue before the court in James v. Robinson.
VI.
Notwithstanding the determination and severity with which English and Commonwealth courts visit by summary punishment for
contempt the publication of matter which prejudices mankind against
persons before the cause is heard, the cases continue to arise. There
is a substantial and increasing corpus of authority in the books and
digests. This suggests a question. If in R . v. Bolom a newspaper published highly prejudicial matter which is severely punished before the
trial as criminal contempt, what is the standing on appeal of a conviction in the subsequent criminal proceedings tainted by the publication which, though punished as contempt, will have had the widest
17
18
[I9641 Argus L.R. 7, at 19; see also at 10.
O p . cit. supra at 170.
circulation? The prejudicial matter may consist of details of an accused
person's prior convictions or charges of other crimes which would
plainly be inadmissible on his trial on a plea of not guilty. If such
matter was wrongly admitted in evidence, a conviction in such a trial
would almost certainly be reversed on appeal. Does it follow, if it can
be shown that the publication had a wide and pervasive effect, that a
conviction would be reversed on the ground that there was a miscarriage of justice?lg There is certainly no case in the books which
supports the propostion that prejudicial publication severely punished
as contempt would provide ground for the reversal of the subsequent
conviction of the person whose trial it was calculated to prejudice.
where it was held that a juryman's personal
Cases like R e g , v .
knowledge of the prior conviction of a prisoner did not of itself afford
grounds for the reversal of a conviction (though the wrongful admission in evidence of the prior criminal record would undoubtedly have
supported reversal), suggest that the publication of prejudicial matter
punishable or punished as contempt would not be sufficient ground
for quashing or reversing a conviction. This appears to be the reading
of the English law by the most recent American text writer on contempt. After reviewing English decisions on contempt by publication,
GOLDFARB
writes :21
"The greatest failure of English contempt law is its disrelation
with its most valuable object-protection of fair trials. It is of
little service to an accused person who is written into jail by a
prejudiced press that the publisher or editor is fined or imprisoned.
His victory is a hollow one unless the conviction is reversed. The
contempt vehicle is only indirectly curative of unfair trials, if at
all, though this is its most valuable purpose."
If this is so, we have a further interesting contrast between English
and American law. The course of American decision shows the difficulty of sustaining contempt convictions for the publication of matter
prejudicial to the conduct of a fair trial, but it also points to the very
real possibility of a reversal or quashing of a conviction tainted by
such prejudicial publicity. The English cases show that there is a ready
disposition on the part of the courts to punish such publication as
contempt, but there is no suggestion that such publication would provide ground for the reversal or quashing of convictions.
19
20
21
Criminal Appeal Act 1907, sec. 4.
[1963] 3 Weekly L.R. 696. See note (1964) 80 L.Q. REV. 13 where the
approach of the English law is described as perhaps "schizophrenic."
THECOKTEMPT
POWERat 88.
VII.
Alongside the rule that publication of matter which is calculated
to prejudice the conduct of a fair trial is punishable as contempt, has
to be set the rule, current in England and in Australian jurisdictions,
that publication of the detailed course of committal or like preliminary
proceedings in criminal cases is not subject to legal restriction. In
England before the Law of Libel Amendment Act 1888, it was regarded as doubtful whether the publication of proceedings conducted
publicly before magistrates as a preliminary to committal for trial at
the assizes or quarter sessions was legally protected. That Act has been
construed as giving implied permission for the publication of such
proceeding^.^^ The consequences of this have been noted by a distinguished Scots lawyer,23
"As regards publication of the prosecution's evidence before trial,
English law is as lax as its rules regarding comment are strict.
After arrest an accused may be remanded in custody by a magistrate and later committed for trial by a panel of justices if they
find that the prosecution has made out a prima facie case. Widespread publicity is often given to the evidence led against the
accused at the pre-trial hearing, including evidence of alleged
confessions and other evidence, which may actually be excluded
at the trial itself. As a rule, only the evidence for the prosecution
is heard at the proceedings for committal, and, although the
magistrates have a discretion to exclude publicity, they have
rarely done so."
Goodhart comments rather mildly that "whether these newspaper
reports are in the public interest is doubtful."24 We have, too, the
recent and more vehement testimony of writers on causes celebres.
Thus, Ludovic Kennedy in his account of the trial of Stephen Wardone of the chapters in the Profumo-Keeler story-writes:25
". . . there were other reasons, too, many overlapping and all
accumulative which led the jury to their verdict. The first was
something that happened long before they had been either called
or chosen. This was the very wide publicity given to the proceedings at the lower court at the end of June and the begisning of
July. I t is impossible to over-estimate the harm that this publicity
must have done to Ward's defence. The prosecution's case was
22
23
284
25
Goodhart, Newspapers and Contempt of Court in English Law, (1938) 48
HARV.L. REV. 885, at 888-889.
T. B. SMITH,STUDIES
CRITICAL
AND COMPARATIVE
(Edinburgh 1962) at 288.
O p . cit. supra note 22, at 889.
THETRIAL
OF STEPHEN
WARD (London 1964) at 233-234.
prima facie more damaging to him than it was at the Old Bailey;
for it contained not only Ronna Ricardo's lying evidence, which
must have seemed to those who read it (and who didn't), as
general confirmation of what Mandy and Christine had alleged,
but also two charges concerning the arranging of abortions and
of keeping a brothel. The last charge was subsequently dropped
for lack of evidence, and the two abortion charges were placed
on a separate indictment. The evidence for all three charges was
flimsy in the extreme, and it is impossible to resist the conclusion
that the only reason they were brought was the belief that the
more mud that was thrown, the more chance that some of it
would stick. The dice was loaded in the prosecution's favour even
further by the fact, unknown to the general public, that the
defence at the lower court deliberately says little for fear of
disclosing its hand. All this combined to make the ordinary reader
(including the subsequent Old Bailey jury) believe that Ward
was guilty of a multitude of sexual misdemeanours long before
hr was tried. I t was all very well Mr. Justice Marshall telling the
jury to put out of their minds everything they had heard so far;
but this was virtually an impossibility."
The case of Dr. John Bodkin Adams may be recalled as a most striking
illustration of the prejudice caused by the publication of the report of
the committal proceedings before the magistrates. In the course of
those proceedings, evidence was given that other patients of the doctor
had died in mysterious circumstances under his care, and this evidence
was not and could not have been given at his trial. I n the event Adams
was acquitted, but the blaze of prejudicial publicity made the burden
of the defence and of the trial judge a very formidable one.26 Lord
Devlin (then Mr. Justice Devlin) tried the case, and in the course of
the trial urged magistrates to exercise their power of adjourning to
hear such cases in camera.27 I t is interesting to recall that it was comment on the Adams trial which gave rise to a very stringent application of the rules of criminal contempt in Reg u. G r i f f i t h ~What
. ~ ~ the
hapless English distributors of Newsweek could add to what the English press had already done without let or hindrance, is not very clear.
As a result of the Adams case, a Departmental Committee on
Proceedings before Examining Justice was set up under the chairmanship of Lord Tucker. The Committee unanimously r e c ~ m m e n d e d ~ ~
26
27
28
29
See SMITH,op. cit. supra, at 288-289.
See BLOM-COOPER,
THEA6 MURDER(Penguin Books 1963) at 88.
[I9571 2 Q.B. 192. See supra at 25.
Cmd. 479 of 1958.
that committal proceedings should be held in public, but that they
should not be reported beyond a statement of the name of the prisoner
and short details of the charge, unless the prisoner was discharged. If
the prisoner was committed for trial, details of the committal proceedings could be published after the actual trial was concluded. I n
making these recommendations the Committee pointed to the very
different Scottish practice described by Professor T. B. Smith:30
"In Scots law . . . after an accused has been charged with a crime,
the press may only publish the bare fact of arrest and charge until
the time of trial, at which stage they may fully report the trial,
but without comment on the merits until after the verdict . . .
There is no public pre-trial hearing in Scotland as in England,
and no problem has thus arisen with regard to the publication
of prosecution evidence before the actual trial. Any infringement
of this public interest in a fair trial would be restrained and
punished."
There is a very real question whether there is any good reason to
rrtain committal proceedings at all.31 But if they are retained, the
case for adopting the Tucker Committee's recommendations-in Australian jurisdictions as well as in England-is very strong. I n England
their adoption was strongly opposed as a muzzle on the press by the
greater part of the press, and no action so far has been taken to
implemrnt them. If the present law of criminal contempt is to make
sense, it can only be made coherent by prohibiting the detailed reporting of committal and preliminary proceedings until such time as
the trial is concluded.
VIII.
At the end of his judgment in James v. R o b i n ~ o nWindeyer
~~
J.,
having held that there could not be a conviction for contempt where
proceedings were not pending, though imminent, said:
"This does not mean, however, that prejudicial matter that is not
30
31
32
Op. cit. supra at 289.
BLOM-COOPER,
op. cit. supra at 90-91 writes "Committal proceedings could
safely be dispensed with. I n their place the Crown would be obliged to
serve on the defence copies of all the statements of witnesses whom the
Crown proposes to call. If the defence, o n seeing this evidence, wishes to
say that the evidence does not add u p to a right of the prosecution to try
the accused, an application could then be made to the magistrates to dismiss
the case. This is likely to be a development which will be acceptable to the
authorities; already the Home Office has a n internal working party studying
the problem."
[I9641 Argus L.R. 7, a t 21.
summarily punishable as a contempt can be published with
impunity. The common law misdemeanour constituted by conduct
tending to pervert the course of justice does not, it has been held,
deprnd upon their being proceedings presently pending: R. v.
Sharpe and Stringer33 . . . I n Western Australia the common law
on this topic has, it seems been supplantcd by ss. 135 and 143 of
the Criminal Code. But we do not have to determine their scope:
the only question for us is whether the summary conviction for
contempt can stand. I agree that it cannot."
This appears to suggest, though without any expression of a concluded
view, that though criminal contcmpt cannot as a matter of authority,
be stretched to cover the case of proceedings not yet pending, though
imminent, the common law misdemeanour might be broad enough
in scope to cover such a case. There is authority to support the proposition that a common law misdemeanour may cover ground also
directly covered by the law of criminal contempt. I n R. v. Tibbits and
W i n d ~ s t , 3an
~ editor and reporter who had published articles bearing
on the conduct and character of accused persons during the course of
a criminal trial, were held guilty of the commonlaw misdemeanour of
unlawfully attempting to pervert the course of justice by publishing
these articles and also of unlawfully conspiring to do so. Lord Alverstone C.J., who delivered the judgment of the court for the Consideration of Crown Cases Reserved, rejected the argument of counsel that
such charges could only be punished, either summarily or on indictment, as contempt. The authority of the case does not now appear to
be q u e ~ t i o n e d .I~n ~Tibbits, the decision gave the persons charged the
entitlement of a jury, but the case does not furnish an answer to the
question whether the misdemeanour would be apt to cover a case like
James v. Robinson, that is, on the footing that that case was correct in
its holding as to the scope of criminal contempt.
R. v. Sharpe and S t ~ i n g e was
r ~ ~a case involving the interpretation
of a statutory misdemeanour of conspiring to obstruct the course of
public justice,37 and the question was whether that offence could be
committed by acts done before proceedings were commenced or pending. The argument that it could not be committed in these circum33
34
35
36
37
[I9381 1 All E.R. 48; 26 Cr. App. R. 122.
[1902] 1 K.B. 77.
See GLANVILLE
WILLIAMS,
CRIMINAL
LAW (London 2nd ed. 1961) at 416;
see also OSWALD,
op. cit supra at 93-94; though see O'Shea v. O'Shea and
Parnell, (1890) 15 P.D. 59, at 64-65.
[I9381 1 All E.R. 48.
Criminal Procedure Act 1851, sec. 29.
stances was characterized by Du Parcq J., speaking for the court, as a
"hopeless proposition and so absurd that it does not form part of the
law of this country."38 The court said that a man who obstructs public
justice as soon as a crime is committed is just as much guilty of the
offence as if he waits until proceedings are actually pending. This,
with respect, makes very good sense and its reasoning might have
been invoked in James u. Robinson to support an argument that the
ambit of criminal contempt was sufficiently broad to cover the facts
of that case. But Windeyer J. referred to Sharpe to suggest the possibility, thought without deciding the point, that where, as in James u.
Robinson contempt proceedings would not lie, proceedings for the
common law nlisdemeanour constituted by conduct tending to pervert
the course of justice might be appropriate. As to this, two points might
be made. First, we would have the seemingly anomalous situation that
if proceedings were maintainable in respect of prejudicial publication
at a point of time when arrest was imminent, such proceedings would
have to be tried by jury;39 but that if proceedings were instituted in
respect of a like publication made after arrest they could be tried
summarily. Perhaps this tells nothing more than that bad history can
produce unsatisfactory consequences. The second point is more substantial. I t is that contempt is an offence of a wide and sometimes of
oppressive range. I t is one thing to say, as in R. v. Tibbits that an act
which is contempt may also constitute an act tending to obstruct or
pervert the course of public justice; it is another to say that where the
outer limits of contempt have been reached, the arm of the law may
be extended still further by resort to a very broadly framed misdemeanour, to punish conduct which is not a contempt in law, but which
it is sought to punish for precisely the reason that is conduct which,
if committed a little later, would be contempt. This is not to argue
that James u. Robinson is correctly decided; it is to argue that if the
conduct in that case was not punishable as contempt, it should not, in
the best interests of the rule of law, be punishable as a case falling
within the ambit of a common law misdemeanour constituted by
conduct tending to pervert the course of justice.
Windeyer J. made reference to sections of the Western Australian
Criminal Code. Section 135 deals with conspiracies to obstruct, prevent, pervert or defeat the course of justice, while section 143 provides
that any person who attempts in any way not specially defined in the
Code to obstruct, prevent, pervert or defeat the course of justice is
38
39
[I9381 1 All E.R. 48, at 51.
See Li Keung Pong v. Attorney-General (Hong Kong), [I9641 1 Weekly
L.R. 892, at 897.
guilty of a misdemeanour. Contempt of court, eo nomine, is dealt
with in two specific sections of the Code: in section 178 in respect of
disobedience to lawful orders of courts and other authorized persons,
and in section 639 in respect of acts done in allowing a jury to separate
in disobedience to the terms of that section. Section 7 of the Criminal
Code Act says that nothing in the Act nor in the Code itself shall
affect the authority of Courts of Record to punish a person summarily
for contempt, but so that a person cannot be so punished and also
punished under the provision of the Code for the same act or omission.
I n light of what has been argued in connection with the common law
misdemeanour, it is submitted that section 143 should be restrictively
interpreted, and in particular that it should not be employed to extend
the boundaries of criminal contempt.
IX.
The law of criminal contempt raises many teasing problems. Its
wide reach and its summary procedures make it, potentially, a very
oppressive instrument. We have seen that in this area American and
English-Commonwealth law have taken divergent paths. Douglas J. of
the Supreme Court of the United States has said of the American
doctrines, in comparing them with the English rules, that "we have
made our choice, refusing to sacrifice freedom of the press to the
whims of judges. We know that judges as well as editors can be
tyrants."40 No doubt English and Commonwealth judges and lawyers
will be startled and will bridle at the word "tyrant", but it has been
the argument of this paper that the use of the summary contempt
power to punish for criticisms of courts and judges has been excessive.
Except for a direct threat to the effective conduct of actual proceedings, it is not clear that there is any warrant for the exercise of contempt power and jurisdiction in such cases, either summarily or, for
that matter, on indictment. The security and the integrity of the
judicial process is not imperilled by unmannerly, tasteless, intemperate
or even unbalanced verbal or written attacks. If the judges do not
deign to avail themselves of the law of defamation-and it is readily
understandable why they do not-there is doubtful wisdom in making
available to them as against such attackers the processes of the criminal
law, a fortiori when those processes are summary and arbitrary, to use
words employed by judges themselves in characterizing the jurisdiction.
A study of the learning on contempt in a cognate field, contempt of
parliament, also gives rise to great concern. The decision of the High
40
The Public Trial and The Free Press, 46 A.B.A.J. 840, at 841.
Court in R e g u. Richa'rds; Ex parte Fittpatrick and Browne41 is deeply
disturbing for it teaches that the citizen is defenceless and without any
court protection against a decision of the parliament committing him
for contempt. There is no definition of what constitutes contempt and
of what constitutes its limits, and the court has said the resolution of
the House of Parliament and its warrants are conclusive of the issue
of contempt. I n saying that this is an appalling doctrine, one may
perhaps bring upon himself the pains and penalties of contempt, but
it should be said. Contempt for scandalizing the court is in not dissimilar case though not likely to be so dramatic or so drastic. I n this context does not the American law, which asserts the freedom of the press
and of speech as a preferred value, speak wisely?
The law of contempt reaches into many places. It may be invoked
to suppress inquiry into matters of public concern on the ground that
such inquiry may prejudice the conduct of existing legal proceedings.
This matter was discussed by Sholl J. in the Supreme Court of Victoria
in Johns @ Waygood L t d , v. U t a h Australia Ltd.42 There an injunction was sought to restrain a Royal Commission appointed under the
prerogative from conducting an inquiry into the causes of the collapse
of a Melbourne city bridge, and it was argued that the pursuit of this
inquiry was contempt, insofar as it prejudiced the conduct of existing
litigation. Sholl J. held that in the absence of specific statutory authority
to carry out the inquiry, its proceedings might be restrained as contempt if they in fact were calculated to prejudice the conduct of
existing legal proceedings. O n the facts of the case he held that there
was no sufficient showing of prejudice. But the jurisdiction undoubtedly exists. A question has been raised whether the mere issue of a writ
(in Johns @ Waygood L t d . u. U t a h Australia Ltd., the matter had
gone beyond that stage) will prevent the further conduct of an inquiry
traversing matters which may be in issue in the legal proceedingsif they materialize. In 1952, a Royal Commission consisting of three
Supreme Court judges had been appointed in Victoria, in the exercise
of the prerogative, to investigate allegations of corruption. A person
whose conduct might have been in question issued a writ, claiming
damages for defamation, and the Commission declined to proceed
further with its inquiry. With reference to this case, Fullagar J. said
in Lockwood v. T h e C o m r n ~ n w e a l t h"I~ ~have not seen a copy of any
reasons given for this decision, and I can therefore express no opinion
(1955) 92 Commonwealth L.R. 157. Leave to appeal refused by the Privy
Council (1955) 92 Commonwealth L.R. 171.
42 [I9631 Victorian R. 70.
43 (1954) 90 Commonwealth L.R. 177, at 186. See also Johns @ Waygood L t d .
v . U t a h Australia Ltd., [I9631 Victorian R. 70, at 85.
41
upon it, but I cannot help feeling that the soundness of the decision
may be open to question. I t would indeed savour of absurdity if an
inquiry duly authorized by law could always be stultified by the simple
expedient of issuing a writ out of a superior court." I n the 1952 case,
neither the libel action nor the inquiry ever went on. With the view
expressed by Fullagar J. I would respectfully and wholeheartedly
agree; it is intolerable that an inquiry into a matter of public importance should be muzzled by the mere issue of a writ. Yet the law
remains uncertain; once a writ is issued, proceedings are pending, and
it remains very uncertain whether discussion in the press or on public
platforms on matters which may be traversed in the action, if it ever
comes on, may be carried on without risk of incurring penalties for
contempt. I t is not possible to advise with any confidence. This is a
very unsatisfactory state of affairs, which should not be allowed to
remain so uncertain and obscure.
I t is in the field of prejudice to the conduct of criminal proceedings that the English and Commonwealth law of contempt may
perform its most useful office. Here it may be that the preferred
American freedom of the press is bought a t too high a price. The
English doctrine rests on assumptions about the impact of prejudicial
matter on the minds of jurors. As an American comment puts it "At
the centre of the analysis lie difficult sociological questions-to what
extent do community attitudes affect the mind of the juror? The
courts will have to rely on speculation from common experience to
reach conclusions until more reliable and specific studies are made
than exist at the present time.""
I n these circumstances, and until we know better-if
we ever
know better-it seems prudent and reasonable to preserve the existing
contempt rules in jury cases (though not the summary procedure)
with respect to prejudicial publication. But when a ca.se is taken on
appeal to a bench of judges, the case for the exercise of contempt
jurisdiction becomes very doubtful. The propriety of the exercise of
this jurisdiction was recently asserted by the Full Supreme Court of
New South Wales in Ex parte T h e Attorney-General; R e T r u t h and
S p o r t s m a n Ltd.45 where the court said that publicity might make it
difficult for a court to deal with the issues in a "detached and impartial fashion"4a and might, where the publicity was unfavourable to
the accused, tend to deter him from proceeding with his appeal. The
44
48
46
Free SPeech v. Fair Trial in the English and American Law of Contempt by
Publication, 17 U . C H I . L. REV.540, at 552.
[I9611 S.R.(N.S.W.) 484.
Zbid., at 495.
court drew support from the decision of an English Divisional Court
in R. v. Davies, Ex parte Delbert E ~ a n s . ' ~That case was later considered by a bench of five judges in Reg v. Duffy, E x parte N ~ s h ~ ~
where Lord Parker C.J. speaking for the Court said:
"It is by no means clear what the judges in that case (Davies)
intended to convey by the word 'embarrassed'. If, in its context,
the word means no more than this, namely, that the article had
put upon the judge, quite unnecessarily, the task of dismissing
the offending matter from his mind, then we think the dicta
quoted go too far. Embarrassment which has no effect on impartiality is not necessarily contempt of court. The question
always is whether a judge would be so influenced by the article
that his impartiality might well be consciously, or even unconsciously, affected. I n other words, was there a real risk, as opposed
to a remote possibility, that the article was calculated to prejudice
a fair hearing?"
Applying this test which, in my submission, states the law very satisfactorily, it will be a rare case that constitutes contempt of an appellate
court. The press and the media may on occasion state their criticism
tastelessly and sensationally, but unless such statements create a real
risk of overbearing appeal judges, they should not expose their publishers to the penalties of contempt. The freedom of the press, including the tasteless and sensational press, is an important value. Moreover,
a public protest, by no means expressed in a sensational or tasteless
manner, may well be an honest expression of indignation at what is
regarded as an unjust sentence or state of the law. T o deny public
expression to such a protest on the ground that it may constitute
contempt of pending appcllate proceedings is doubtful wisdom or
policy; except in the rarest case, there is little likelihood of it disturbing the course of justice.
There is, however, ground for arguing that the ambit of contempt
rules should be extended to cover situations of "imminence" as in
James v. Robinson, where the English and Australian law may now
diverge. But in this case, there is an important problem of balance,
for the press may serve a very valuable function in assisting in the
apprehension of criminals, as for example by the publication of photographs and descriptions of the wanted man. Here the law must of
necessity be more flexible than at a time after arrest.
The most unsatisfactory aspect of the English law (and of the
47
4s
[I9451 1 K.B.435.
[I9601 2 Q.B. 188, at 200.
'
law of those Commonwealth jurisdictions which follow this English
doctrine) is the coexistence of strict contempt rules with the rule
which allows publication of preliminary proceedings. The argument
voiced in the English press in response to the Tucker Committee's
report, that the press is a watchdog, and that full publication of
preliminary proceedings is, like full publication of the proceedings at
the actual trial, a safeguard of the liberty of the subject, carries no
conviction. The present situation is scandalous: in respect of the same
matter the press is strictly muzzled and not muzzled at all, and
principle disappears.
The law of criminal contempt has grown unevenly and unsatisfactorily. I t is an area of the law which in various ways raises important issues touching the liberty of the subject, and it should be
subject to severe scrutiny, so that it may be put in better order.
ZELMAN COWEN."
*
B.C.L., M.A. (Oxon.), B.A., LL.ICI. (hfelb.). P r o f e s s o ~ of Public Law and
Dean of the Faculty of Law, University of Melbourne.
39